July 30, 2014 – An estranged wife is not considered a “surviving spouse” under the state’s wrongful death law, the Wisconsin Supreme Court has ruled in a 4-3 decision, meaning a father’s minor children are first in line to recover for his wrongful death.
After Billy Joe Force died in a car accident while working, his estranged wife emerged. Linda Force sought wrongful death compensation from the driver that allegedly caused the accident, as well as the driver’s insurer and the insurer for Billy Joe’s employer.
Billy Joe had three minor children before his marriage to Linda Force, who separated from Billy Joe in 1997 after six months of marriage and had no obligation to support the children. The children, through a guardian, also sought wrongful death damages.
The insurance companies argued that Linda Force was a “surviving spouse.” Under Wis. Stat. section 895.04(2), the existence of a surviving spouse means other potential beneficiaries do not have a cause of action for wrongful death. However, the court must determine how much should be “set aside” for the spouse to support the children.
In the event there is no surviving spouse, the lineal heirs have a cause of action. In this case, the minor children argued that an estranged spouse should be disregarded.
Linda Force’s wrongful death claim was dismissed and never appealed. The driver and insurance companies argued that although Linda Force gets nothing, she is still a “surviving spouse,” meaning the children have no cause of action for wrongful death.
The circuit court ruled in favor of the driver and insurers. The state appeals court certified the case for review. In Force v. American Family Mutual Insurance Company, 2014 WI 82 (July 18, 2014), a supreme court majority reversed the circuit court.
“We conclude that the circuit court erred in granting the defendants summary judgment against the minor children and erred in dismissing the minor children’s causes of action against the defendants for wrongful death,” wrote Chief Justice Shirley Abrahamson, joined by Justices Ann Bradley and Patrick Crooks. Justice David Prosser concurred.
“The minor children in the present case have a cause of action against the defendants for wrongful death as if Linda Force were not alive at the death of the deceased.”
The majority explained that when the wrongful death statute was enacted, the Wisconsin Legislature did not contemplate the existence of an estranged spouse.
“In referring to a ‘surviving spouse’ and creating a hierarchical structure of beneficiaries in the wrongful death statute, the legislature envisioned an intact marriage with minor marital children whom both the deceased and the deceased’s spouse were obligated to support,” the chief justice wrote.
Precluding the minor children’s wrongful death claim because of an estranged spouse, the majority explained, would contravene the purposes of the wrongful death statute.
“The wrongdoers would escape liability and the minor children would not be compensated for their losses,” the Chief Justice Abrahamson wrote.
Concurrence and Dissent
Justice David Prosser concurred with the majority opinion but wrote separately to encourage a legislative rewrite of the wrongful death statute’s language that, “if applied literally, would produce an absurd or unreasonable result,” Justice Prosser noted.
“Courts try to avoid absurd results, but courts are not eager to disregard the seemingly clear language of a statute,” Justice Prosser wrote. “Absurd results produce hardship or unfairness that is quickly recognized and cannot be ignored.”
Justice Patience Roggensack dissented, joined by Justices Michael Gableman and Annette Ziegler. The dissent said it was appealing to side with the children in this case, but the application of statutory construction does not allow that result.
“In my view, the majority opinion’s conclusion that the statutory term ‘surviving spouse’ does not mean a spouse who has survived the death of her husband because she was estranged from her husband at his death is not based on statutory construction and will create considerable mischief in the future,” Justice Roggensack wrote.
The dissent noted that under prior case law, courts have interpreted the “surviving spouse” language to preclude a minor child’s wrongful death action, with only one exception: Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988).
In that case the court held that minor children could pursue a wrongful death action despite the existence of a “surviving spouse,” because the surviving spouse murdered his wife, the children’s mother. The killer was considered to have predeceased his wife, consistent with a statute that precludes a killer from inheriting from the victim.
But that wasn’t the case here.
“Linda had nothing to do with Billy’s death, and there is no statutory directive, other than the wrongful death statute … that applies here,” wrote Justice Roggensack.
Roggensack suggested the legislature revise the statute to address the unfairness “rather than creat[e] a common law fix for the children in the present case. …”